Robertson v. City of Detroit

92 Mich. App. 377 (1979) 284 N.W.2d 808

ROBERTSON
v.
CITY OF DETROIT

Docket No. 78-5436.

Michigan Court of Appeals.

Decided September 6, 1979.

Eddie Robertson, in propria persona.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Jon M. DeHorn, Assistant Attorney General, for the Michigan Employment Relations Commission.

George G. Matish, Acting Corporation Counsel, and Anna Diggs-Taylor and Nancy McCaughan-Blount, Assistants Corporation Counsel, for defendant.

Before: DANHOF, C.J., and V.J. BRENNAN and H.R. CARROLL,^[*] JJ.

V.J. BRENNAN, J.

Plaintiff is an employee of the City of Detroit Department of Transportation. On December 5, 1977, he filed a charge of unfair labor practices with the Michigan Employment Relations Commission alleging that:

1. On September 19, 1977, plaintiff was prohibited from passing out leaflets at the Shoemaker bus terminal;

2. On November 22, 1977, plaintiff was prohibited from passing out leaflets at the Coolidge bus terminal;

3. On August 5, 1977, on plaintiff's day off, he was at the Coolidge terminal to pick up his paycheck. He was asked to go to the superintendent's office concerning a grievance. According to the superintendent, plaintiff became belligerent and was given a three-day suspension. Plaintiff contended he did not have to see the superintendent on his day off and was improperly disciplined; and

4. When the suspension was reviewed, plaintiff was given six months probation for no reason.

Plaintiff alleged three additional general unfair labor practices:

A. Defendant City of Detroit printed and gave to the union proposed contracts for distribution to the members;

B. Defendant City of Detroit printed a leaflet designed to influence the members' decision on the contract; and

C. Defendant City of Detroit did not give a cost of living allowance due under the old contract that had been extended during contract negotiations.

The administrative law judge issued his decision on November 9, 1978. The opinion discussed each allegation. The administrative law judge found that the first three charges did not constitute unfair labor practices. However, he found the six months probation to be a reprisal for plaintiff's use of the grievance procedure. This is the only charge that caused the judge to issue an order. The administrative law judge also found that the general allegations were not unfair labor practices.

Plaintiff failed to file exceptions to the administrative law judge's proposed order in accordance with MCL 423.216(b); MSA 17.455(16)(b). Since there is no demonstration of good cause for this failure, the plaintiff's objections are not preserved for review by this Court. Robertson v Local Division 26, Amalgamated Transit Union, 91 Mich. App. 429; 283 NW2d 766 (1979).

However for the purpose of clarification on this subject in future dispositions we point out error regarding the administrative law judge's ruling that the solicitation ban in the present case did not constitute an unfair labor practice. The ruling had a two-fold basis which is evident from the following quote:

"The Charging Party does not have a constitutional right to pass out handbills and/or solicit signatures for a petition on company property during working hours where the purpose of the handbilling or petition is not organizational in nature. Here the purpose of handbilling was criticism of the Union, not an effort to organize employees. The employer's long established no solicitation rule is reasonable. As the employer pointed out — if all employees had a right to solicit or petition, thousands could be doing so at any given time."

We disagree with the initial supposition set forth above that only organizational activities are protected. Section 9 of the public employees relations act, MCL 423.209; MSA 17.455(9), outlines public employees' protections as follows:

"It shall be lawful for public employees to organize together or to form, join or assist in labor organizations, to engage in lawful concerted activities for the purpose of collective negotiation or bargaining or other mutual aid and protection, or to negotiate or bargain collectively with their public employers through representatives of their own free choice."

Dissemination of information or opinion relating to a proposed contract aids the ratification process by assisting the electorate in making informed and rational decisions. The pamphlet distributed by plaintiff on September 19 falls within this category since it attempted to give an alternate view of the real value of the proposed contract. Thus, the commission erred in defining the right to distribute pamphlets in terms of organizational activity alone.

Our ruling as to the September 19 pamphlet in any event would not affect the commission's final disposition which was also based upon the finding that the long-established no solicitation rule was reasonable. Such a rule is valid if not enacted or enforced for a discriminatory purpose. See NLRB v Babcock & Wilcox Co, 351 U.S. 105; 76 S. Ct. 679; 100 L. Ed. 975 (1956); TRW, Inc v NLRB, 393 F2d 771 (CA 6, 1968). There was no evidence presented below which would intimate any discriminatory purpose.

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.